Law, Regulation, and Compliance

CAN-SPAM Act of 2003

Overview of Primary Requirements

  • Don't use false or misleading header information
    • The 'From' or 'Reply-To' must be representative of the information in the content of the email message.
  • Don't use deceptive subject lines.
  • Identify the message as an advertisement, or promotion, explicitly.
  • Tell recipients where you're located,
    • There must be a physical address for the business present in the email
  • Tell recipients how to opt out of receiving future email from you
    • All commercial messaging must provide an opt-out (unsubscription opportunity).
  • Honor opt-out requests promptly
    • Unsubscriptions must be honored within 10 days of the request.
    • You may not require a fee for any opt-out request or submission. 

Common CAN-SPAM Q&As

Candid answers regarding CAN-SPAM questions.

QUESTION: Using a Purchased List - 'I bought a list of email addresses for people likely to be interested in my niche product. If I comply with the commercial email requirements of CAN-SPAM, do I have anything to worry about?'

ANSWER: The CAN-SPAM Act doesn't require initiators of commercial email to get recipient's' consent before sending them commercial email. In other words, there is no opt-in requirement. So in general, as long as you follow the "initiator" requirements of the Act, you can send email until the recipient asks to opt out. But buying lists like that can be risky. There is the possibility that addresses on the list belong to people who have already opted out of receiving email from your company. And there's a risk that the list was put together using illegal means like address harvesting or dictionary attacks. Therefore, some companies choose to send marketing email only to people who have affirmatively asked to receive them or with whom the company already has a business relationship.

NOTE: Per the "Federal Register / Vol. 73, No. 99 / Wednesday, May 21, 2008 / Rules and Regulations," (Pages 29663-29665); in addition to the CAN-SPAM Act, 15 U.S.C. 7702(1), the individual must have expressed an 'Affirmative Consent' to receive all further communications.


In this Act: (1) AFFIRMATIVE CONSENT.--The term "affirmative consent", when used with respect to a commercial electronic mail message, means that- (A) the recipient expressly consented to receive the message, either in response to a clear and conspicuous request for such consent or at the recipient's own initiative; and (B) if the message is from a party other than the party to which the recipient communicated such consent, the recipient was given clear and conspicuous notice at PUBLIC LAW 108-187--DEC. 16, 2003 117 STAT. 2701 the time the consent was communicated that the recipient's electronic mail address could be transferred to such other party for the purpose of initiating commercial electronic mail messages.

 

QUESTION: Does cell phone spam violate the CAN-SPAM Act?

ANSWER: Yes and no. Although the CAN-SPAM Act is primarily designed to curb email spam sent to computers, it still applies to some spam transmitted to wireless devices like cell phones. In 2005, the FCC adopted rules that prohibit sending unwanted commercial messages to addresses referencing an internet domain name assigned by wireless carriers for delivery to a subscriber's wireless device. For example, FCC rules prohibit sending an unwanted text message to a cell phone using Internet-to-phone short message service (SMS) technology. But what about phone-to-phone SMS texts, the more common way of texting where messages are routed directly to the wireless carrier over a private network? In that situation, CAN-SPAM doesn't apply, but marketers need to pay careful attention not to violate Section 5 of the FTC Act or the FCC's rules concerning messages sent to wireless telephones under the Telephone Consumer Protection Act (TCPA).

3 Primary Determinations of the CAN-SPAM Act

CAN-SPAM Act of 2003, Sec. 7704(a)&(b) Federal Register / Vol. 73, No. 99 / Wednesday, May 21, 2008 / Rules and Regulations,

  1. There is a substantial government interest in regulation of commercial email on a nationwide basis;
  2. Senders of commercial email should not mislead recipients as to the source or content of such email;
  3. Recipients of commercial email have a right to decline to receive additional commercial electronic mail from the same source.

Violation of the CAN-SPAM Act

Each violation of the CAN-SPAM Act of 2003 is subject to penalties upward of $40,654 per individual instance. Therefore, if you violate this act in application to 10,000 recipients, you are potentially responsible for penalties of $406,540,000.

Please contact the Digital Marketing team if you have any concern with your email practice, or if you are aware of any unethical practice.